The Farmer and the Environment

by Mary MacGregor

In this article, we will look at two provincial environmental statues, the Waste Management Act (B.C.) and the Water Act (B.C.), including the recently passed Water Amendment Act (B.C.) 1992.

Waste Management Act Provisions

The Waste Management Act prohibits introduction of “waste” into the environment, except as permitted. It then goes on to describe the process under which a permit can be obtained.

“Waste” includes air contaminants, litter, effluent, refuse, biomedical waste, special wastes, and any other substance designated under regulation, whether or not the substance has any commercial value or is capable of being used for a useful purpose.

“Effluent” means a substance that is discharged into water or onto land and that injures or is capable of injuring the health or safety of a person, property or any life form, or interferes or is capable of interfering with visibility or with the normal conduction of business, causes or is capable of causing material physical discomfort to a person, or damages or is capable of damaging the environment.

“Refuse” means discarded materials, substances or objects.

These definitions include a wide range of substances.

“Environment” means the air, land, water and all other external conditions or influence under which man, animals and plants live or are developed.

“Introduction of waste into the environment” means depositing the waste on or in or allowing or causing the waste to flow or seep on or into any land or water or allowing or causing the waste to be emitted into the air.

The prohibition is stated as follows: “No person shall, in the course of conducting an industry, trade or business, introduce or cause or allow waste to be introduced into the environment.”

There are some limitations on the prohibition. If you have a valid and subsisting permit, you may introduce waste into the environment. You may burn leaves, foliage weeds, crops or stubble for domestic or agricultural purposes without contravening the Act. You may use pesticides or biocides for agricultural, domestic or forestry purposes in compliance with the Pesticide Control Act (B.C.), the Pest Control Products Act (Canada) and any other Act and regulation governing their use. You may burn for land clearing, land grading or tilling. You may emit soil particles or grit in the course of agriculture or horticulture.

The regional waste manager can order (s. 22) someone responsible for polluting the environment, including someone on whose land the polluting substance escaped, to clean it up at the person’s cost.

The maximum penalty for contravening the prohibition section is $1,000,000. If you have a permit and introduce waste into the environment without having complied with the requirements of the permit or approval, commits an offence and is liable to a penalty not exceeding $1,000,000. If you have a permit and merely fail to comply, without introducing waste into the environment, the maximum penalty is $300,000. If there is a fine imposed, one may also be imprisoned for up to six months.

Anyone who contravenes the Act and intentionally causes damage to or loss of use of the environment or shows wanton or reckless disregard for the lives or safety of other persons causing a risk of death or harm to other persons is liable to a fine of up to $3,000,000 or imprisonment for up to three years, or both.

Where a corporation commits an offence under the Act, an employee, officer, director or agent to the corporation who authorized, permitted or acquiesced in the offence commits the offence regardless of the fact that the corporation if also convicted.

Separate fines up to the stated maximum can be imposed for each day the offence continues.

There is one year imitation period which runs from the commission of the offence.

Waste Management Act Cases

A Yukon judge in 1980 made the most instructive statement that I saw in the cases I reviewed:

Pollution is a crime. Pollution has been directly linked to causing or aggravating a number of serious illnesses…Each offence must be sentenced in accord with its specific facts, but pollution offences must be approached as crimes, not as morally blameless technical breaches of regulatory standards.

The message is that pollution has the potential of causing great harm to present and future generations. The damage from a series of small offences is cumulative. The cases indicate that even small infractions will be treated seriously. There may be fines or reclamation costs which exceed the ability of the small family business to pay.

In January, 1991, Reemor Enterprises Inc., a small Langley automotive family business, was assessed a fine of $9,000, and was given nine months to pay the fine. The business netted about $40,000 per year for the owner and his family. In addition to the fine, the business had incurred $27,700 in clean-up costs. The offence was a leak of used motor oil from a 250 gallon storage tank. The actual volume of leaked oil was not indicated in the case. The municipality also incurred cleanup costs of about $56,000, which were not ordered to be recovered from Reemor. The owner of Reemor had cooperated fully with the Ministry of Environment in the investigation and clean-up of the leak.

In October, 1991, Maurice Simard of Shawnigan Lake was fined $1,000 for continuing to accept garbage on a piece of property that had formerly been a landfill site, without having a proper permit. There were a number of extenuating factors in that case. Mr. Simard had cooperated fully in the investigation, he had been an upstanding member of the community for many years and had held public office, he had had serious financial problems which he had just overcome, and there were may unpermitted dump sites other than his within the area.

In May 1992, Roland Fontaine of Salmon Arm was fined $1,000 and ordered to serve ten days in prison for introducing hog manure and water mixture into the environment, and for contravening a pollution abatement order of the Manager. Mr. Fontaine cleaned his 700-hog barn by flushing it with water, which ran down the hill onto his neighbour’s property, where it pooled into a lagoon. The Ministry of Environment had been working with Mr. Fontaine since 1987. They had advised him that he required a permit to discharge effluent. He had not sought such a permit. The Ministry wanted him to improve the situation by installing a $70,000 disposal system. Mr. Fontaine found the cost excessive and decided to remedy the situation by shutting down over a one-year period. The Ministry saw this strategy as ignoring their order, and charged Mr. Fontaine who was found guilty and sentenced as above. The term of imprisonment had been agreed to by both the Crown and Mr. Fontaine. The most poignant line in the transcript is when Mr. Fontaine is asking the judge how his sentence will be served. He said “I’ve never been in jail before”.

One fears that other people may be in his situation in the future environmental prosecutions.

WATER ACT and WATER AMENDMENT ACT 1992

Activities which constitute offences under the Water Act are many and varied. They include:

placing, maintaining or making use of an obstruction in the channel of a stream without authority;

constructing, maintaining, operating or using works without authority; putting into a stream any sawdust, timber, tailings, gravel, refuse, carcass of other thing of substance after having been ordered by the engineer or water recorder not to do so;

diverting water from a stream without authority;

using water when not lawfully entitled to do so;

making changes in and about a stream without lawful authority; and

breaching a term or condition of a licence, approval or regulations.

The penalties have just been increased to $200,000 per day the offence is committed. Employees, officers, directors or agents may be liable, and thee is a one year limitation period starting at the time of the happening of the offence.

“Stream” includes a natural watercourse or source of water supply, whether usually containing water or not, ground water, and a lake, river, creek, spring, ravine, swamp and gulch.

“Stream channel” means the bed of a stream and the banks of a stream, whether above or below the natural boundary and whether usually containing water or not, including all side channels.

“Changes in and about a stream” means any modification to the nature of a stream including the land vegetation, natural environment or flow of water within a stream, or any activity or construction within the stream channel that has or my have an impact on a stream.

Note that activities on the stream bank, not touching the stream itself, can be included in “changes in and about a stream”.

Permit requirements for doing work in a stream will often include not only the Department of Fisheries and Oceans under the federal Fisheries Act (Canada), but also the provincial Ministry of Environment under the Water Act.

CONCLUSION

All three statutes, the Fisheries Act, the Waste Management Act, and the Water Act, unfortunately appear to be likely sources of future persecutions of people within the farm community. Even minor, unwitting infringements of the three Acts will be dealt with seriously, and possibly severely, by the courts.